Citation Nr: 1012214
Decision Date: 04/01/10 Archive Date: 04/14/10
DOCKET NO. 09-02 434 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah
THE ISSUES
1. Entitlement to an initial disability rating in excess of
10 percent for service-connected posttraumatic stress
disorder (PTSD) and dysthymic disorder.
2. Entitlement to an initial compensable disability rating
for service-connected chronic tension headaches.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
April Maddox, Counsel
INTRODUCTION
The Veteran had active service from January 1998 to April
2007.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2007 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Salt Lake City, Utah.
The Veteran testified before the undersigned Acting Veterans
Law Judge at a Board videoconference hearing in January
2010. A transcript of this proceeding has been associated
with the claims file.
FINDINGS OF FACT
1. Throughout the course of the appeal, the Veteran's PTSD
has been manifested by no more than some occupational and
social impairment with reduced reliability and productivity
due to symptoms including depressed mood, anxiety, and
transient irritability, poor concentration and short term
memory, hypervigilance, obsessive and compulsive rituals,
and transient suicidal ideation with no history of attempts
or active plans.
2. Throughout the course of the appeal, the Veteran's
chronic tension headaches have been manifested by occasional
prostrating attacks that are not productive of severe
economic inadaptability
CONCLUSIONS OF LAW
1. The criteria for an initial disability rating of 30
percent and no higher for PTSD and dysthymic disorder have
been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R.
§§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 9411 (2009).
2. The criteria for an initial disability rating of 30
percent and no higher for chronic tension headaches have
been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R.
§§4.1, 4.3, 4.7, 4.12a, Diagnostic Code (DC) 8199-8100
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
This appeal arises out of the Veteran's claim that her
service-connected PTSD/dysthymic disorder and chronic
tension headaches are more disabling than currently
evaluated.
Analysis
Disability evaluations are determined by the application of
a schedule of ratings, which are based on the average
impairment of earning capacity. 38 U.S.C.A. § 1155; 38
C.F.R. § 4.1. Separate diagnostic codes identify the
various disabilities. The governing regulations provide
that the higher of two evaluations will be assigned if the
disability more closely approximates the criteria for that
rating. Otherwise, the lower rating is assigned. 38 C.F.R.
§ 4.7.
"Staged ratings" or separate ratings for separate periods of
time may be assigned based on the facts found following the
initial grant of service connection. Fenderson v. West, 12
Vet. App. 119 (1999).
1. PTSD
Throughout the rating period on appeal, the Veteran's PTSD
has been rated as 10 percent disabling under 38 C.F.R. §
4.130, Diagnostic Code (DC) 9411. Under that code, a 10
percent disability rating is in order when there is
occupational and social impairment due to mild or transient
symptoms that decrease work efficiency and the ability to
perform occupational tasks only during periods of
significant stress, or symptoms that are controlled by
continuous medication.
A 30 percent disability rating is assigned under DC 9411
when there is occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, mild
memory loss (such as forgetting names, directions, recent
events).
A 50 percent rating is assigned under DC 9411 when there is
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped, speech;
panic attacks more than once a week; difficulty in
understanding complex commands; impairment of short and long
term memory (e.g., retention of only highly learned
material, forgetting to complete tasks); impaired judgment;
impaired abstract thinking; disturbances of motivation and
mood; difficulty in establishing and maintaining effective
work and social relationships. Id.
A 70 percent rating for PTSD is warranted when there is
occupational and social impairment with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, mood, due to such symptoms as: suicidal ideation;
obsessional rituals which interfere with routine activities;
speech intermittently illogical, obscure, or irrelevant;
near- continuous panic or depression affecting the ability
to function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect
of personal appearance and hygiene; difficulty in adapting
to stressful circumstances (including work or a work-like
setting); and the inability to establish and maintain
effective relationships. Id.
A 100 percent rating is warranted if there is total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; gross inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation or own name. Id.
Also of relevance is the claim is the Global Assessment of
Functioning (GAF) scale reflecting the psychological,
social, and occupational functioning on a hypothetical
continuum of mental-health illness. See Richard v. Brown, 9
Vet. App. 266, 267 (1996), citing the Diagnostic and
Statistical Manual of Mental Disorders (4th ed.1994). A GAF
score of 41 to 50 is defined as denoting serious symptoms
(e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifter) or any serious impairment in social,
occupational, or school functioning (e.g., no friends,
unable to keep a job). A score of 51 to 60 is defined as
indicating moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co-workers). A
GAF score of 61 to 70 is indicative of some mild symptoms
(e.g., depressed mood and mild insomnia) or some difficulty
in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but
generally functioning pretty well, with some meaningful
interpersonal relationships. A score of 71 to 80 indicates
that, if symptoms are present at all, they are transient and
expectable reactions to psychosocial stressors with no more
than slight impairment in social and occupational
functioning. See Carpenter v. Brown, 8 Vet. App. 240, 242-
244 (1995).
Evidence relevant to the level of severity of the Veteran's
PTSD includes VA psychiatric examination reports dated in
February 2007 and April 2009. During the February 2007
examination the Veteran indicated that she was working full-
time as an air guardsman. She described her sleep and
appetite as good, but endorsed feelings of hopelessness
three or four times per week and said that she had more bad
days than good. She also endorsed transient suicidal
ideations. She indicated that she occasionally had a vague
plan, such as driving her car off the road. She denied any
intent for suicide, however.
The Veteran further reported a history of nightmares and
said, "I have been assaulted in my dreams." She also
recalled dreaming about her own suicide when she had met her
dead brother in a dream. She further reported that she
occasional discomfort during consensual sex with her spouse.
She also endorsed transient irritability, poor concentration
on complex tasks, and hypervigilance. She denied an
exaggerated startled response. She said that she avoids
talking or thinking about her reported sexual trauma and
also avoids things that remind her of it. She said that she
never called off work and that she always attends work. She
said that once or twice weekly she thinks that she
experiences reduced efficiency and productivity secondary to
her depression. The Veteran denied any current use of
alcohol. There was no treatment for any psychiatric
disorder. She said that she resisted the idea of taking
medication.
Following the evaluation, the examiner opined that the
Veteran's psychiatric disability appeared to have only a
mild effect on her social functioning. There was no
impairment of though process or communication, and no
inappropriate behaviors noted or reported. She was
competent, and her ability to maintain activities of daily
living was not impaired. No psychiatric symptoms had
appeared in the last year, and the Veteran was actively
employed as a guardsman.
The examiner diagnosed the Veteran with PTSD and dysthymic
disorder and assigned a GAF score of 65. The examiner also
noted that the Veteran's employment and social functioning
were only mildly impaired secondary to her psychiatric
disorders.
During the April 2009 VA examination, the Veteran indicated
that she was married with two young step-children and worked
in an office position with the National Guard. She denied
any current counseling with the exception of some family
counseling primarily associated with one of her step-
children. She reported some job tensions with her
supervisor. In addition to doing office work with the
National Guard, the Veteran indicated that she had a part-
time gourmet food business where she conducted two
presentations per month and sold various items.
At the time of the examination, the Veteran described
herself as moody and angry and reported periods of crying.
She reported decreased energy and decreased interest. She
also reported decreased self esteem and guilt and indicated
that she could be very self punitive such as by starving
herself. However, the Veteran denied any active suicidal
plans or actual history of attempts although she did have
intermittent suicidal ideation. The Veteran also denied any
manic-like symptoms such as elevated mood, grandiosity,
decreased need for sleep, or pressure but she admitted to
generalized anxiety and some obsessive-compulsive rituals.
Additionally, the Veteran reported that she frequently has
to follow a certain ritual when going to bed and she also
finds that she particularly needs to have things in a
certain order. She has some checked her alarm clock many
times and had difficulty with changes in routine. The
Veteran denied any active homicidal ideation, plans, or
history of attempts. She denied any overt psychotic
symptoms such as auditory and visual hallucinations or
paranoia. She denied any grossly inappropriate behavior but
reported some intrusive memory re-experiencing and extreme
sensitivity and detachment at times associated with her
marital relationship and intimacy. The Veteran reported
that despite having known each other quite well before being
married, she and her husband nevertheless were having some
issues associated with intimacy and her history of sexual
assault.
On mental status examination the Veteran was neatly groomed.
She appeared tense, anxious, and depressed. She was
friendly and cooperative and her speech was articulate.
Thought processes were logical and goal oriented. Motor
functioning was grossly intact. She was estimated to have
at least average intellect and to be a reasonable historian.
All parameters were intact except the Veteran forgot the day
of the week. All other orientation tasks were intact. Her
math skills, attention and concentration skills, visual
motor, visual spatial skills, constructional skills,
organization and planning skills, and language and
comprehension skills were grossly intact.
The examiner opined that while the Veteran reported some
tensions with her supervisor at work, she was not missing
work and was doing a good job. The examiner also wrote that
the Veteran's social functioning was not impaired, although
she could be moody and isolative. The examiner diagnosed
the Veteran with PTSD, chronic mild to moderate in partial
remission and a mood disorder and assigned a GAF score of
69. The examiner wrote that the Veteran's psychiatric
disorders were severe enough to require continuous
medication but the Veteran was no currently in regular
mental health treatment although she was interested in
seeking some additional counseling, nor was she taking
psychotropic medications. The examiner also opined that the
Veteran's psychiatric symptoms were transient or mild with
regard to work efficiency and decreased work efficiency and
ability to perform occupational tasks only during periods of
significant stress.
Also of record is a statement from the Veteran's husband
dated in October 2007, in which he noted that the Veteran
was depressed an average of four times per week and talked
about suicide at least twice per month. He also indicated
that she had trouble with complex instructions, was easily
irritable, and avoided crowds.
During the January 2010 Board hearing, the Veteran testified
that she was currently employed by a construction company
doing security administration. She indicated that she did
not like her job and she experienced outbursts of anger once
a week. She also indicated that her short term memory was
severely impaired. The Veteran indicated that she had a
history of suicide attempts and thought about suicide once
every couple of months. Previously, the Veteran indicated
that she thought about suicide weekly.
Given the evidence of record, the Board finds that a
disability rating of 30 percent, but no higher, is warranted
for the Veteran's PTSD and dysthymic disorders for the full
pendency of her claim. As above, a 30 percent rating is
warranted under DC 9411 when there are symptoms such as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, and mild
memory loss (such as forgetting names, directions, recent
events).
The above-cited evidence shows that the Veteran is anxious
and depressed. It also shows complaints of transient
irritability, poor concentration and short term memory,
hypervigilance, obsessive-compulsive rituals, and transient
suicidal ideation with no history of attempts and no active
plans. As such, the Board finds that the Veteran's
disability picture meets the criteria for a 30 percent
rating.
Regarding the potential for an even higher disability
rating, the Board finds the Veteran's PTSD does not meet the
criteria for the next-higher, 50 percent, evaluation. As
noted above, a 50 percent rating requires occupational and
social impairment with reduced reliability and productivity
due to certain symptoms; however, the Board finds that those
delineated symptoms are not significant characteristics of
the Veteran's disability. In this respect, the Veteran has
not been found to have such symptoms as flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; or difficulty in
understanding complex commands. The Veteran has also not
been shown to have any impaired judgment or impaired
abstract thinking. She does have some social impairment,
but such is found to be contemplated by a 30 percent award.
Significantly, both the February 2007 and April 2009 VA
examiners described the Veteran's psychiatric disability as
no more than mildly disabling.
Further, the assignment of GAF scores of 65 and 69 by the
February 2007 and April 2009 VA examiners represent the
presence of only some mild symptoms, or some difficulty in
social, occupational or school functioning, but generally
being able to function pretty well, with some meaningful
interpersonal relationships. Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV).
In this regard, it is observed that the Veteran has
maintained a lasting marriage with her husband and has also
maintained significant relationships with her step-children.
With respect to industrial impairment, the Veteran has been
employed full-time during the pendency of this appeal.
While the Veteran has experienced several symptoms to
include depressed mood, anxiety, transient irritability, and
transient suicidal ideation with no history of attempts or
current plans, her overall disability picture is not found
to most nearly approximate the next-higher 50 percent rating
(or any other rating above 30 percent). Regarding the
suicidal thoughts, the absence of attempts or any concrete
plan during the pendency of the rating period leads the
Board to conclude that this symptom, while obviously
serious, does not, standing alone, demonstrate any overall
disability picture more severe than that addressed by a 30
percent rating.
The Board also finds that no higher evaluation can be
assigned pursuant to any other potentially applicable
diagnostic code. Because there are specific diagnostic
codes to evaluate PTSD consideration of other diagnostic
codes for evaluating the disability does not appear
appropriate. See 38 C.F.R. § 4.20 (permitting evaluation,
by analogy, where the rating schedule does not provide a
specific diagnostic code to rate the disability). See Butts
v. Brown, 5 Vet. App. 532 (1993).
In conclusion, the Board finds that throughout the rating
period on appeal, the preponderance of the evidence supports
a disability rating of 30 percent, and no higher, for the
Veteran's PTSD/dysthymic disorder. 38 C.F.R. § 4.3.
2. Chronic tension headaches
Throughout the rating period on appeal, the Veteran's
chronic tension headaches have been rated by analogy under
38 C.F.R. § 4.12a, DC 8199-8100 as noncompensably percent
disabling. Pursuant to 38 C.F.R. § 4.27, hyphenated
diagnostic codes are used when a rating under one diagnostic
code requires use of an additional diagnostic code to
identify the basis for the evaluation assigned; the
additional code is shown after the hyphen; unlisted
disabilities requiring rating by analogy will be coded first
the numbers of the most closely related body part and "99."
Under DC 8100, migraines are evaluated as follows: a non-
compensable rating is assigned with less frequent attacks; a
10 percent rating is assigned with characteristic
prostrating attacks averaging one in 2 months over last
several months; a 30 percent rating is assigned with
characteristic prostrating attacks occurring on an average
once a month over last several months; and, a 50 percent
rating is assigned with very frequent completely prostrating
and prolonged attacks productive of severe economic
inadaptability. 38 C.F.R. § 4.124a, DC 8100.
Evidence relevant to the level of severity of the Veteran's
headaches includes VA examination reports dated in January
2007 and April 2009.
During the January 2007 VA general examination, the Veteran
reported an onset of headaches in 2001. She stated that the
headaches began appearing spontaneously with no
precipitating events. Initially, she thought that the
headaches were related to food but after eliminating various
foods from her diet she decided that there was no
relationship. She reported that she initially experienced
one headache per month which gradually increased to two per
week. She first treated the headaches with Motrin and extra
sleep. At the time of the examination, the Veteran had
three to four headaches per week lasting from three hours to
three days. She described the headaches as primarily
beginning in the frontal area but that they moved across the
top of the head to the occipital. She stated that each
headache was different. Sometimes she was sensitive to
light and sound. She complained that her head felt "huge
and pounding." There were no other signs or symptoms. She
stated that she did have a computed tomography (CT) of head
that was normal.
At the time of the examination she indicated that she
treated her headaches with Naproxen which she takes only for
headaches that last greater than one day. She reportedly
took two doses of Naproxen in the past week. She indicated
that Naproxen was not usually beneficial. If she was home
during her headaches, she usually went to bed and slept. If
she was at work, she continued to work and "suffer[ed]
through the headache." She did not know of anything that
exacerbated her headaches. Headaches were usually
alleviated with sleep and sometimes with Naproxen. The
effect on her occupation was minimal. She still went to
work everyday, though she stated that she was not as
productive when having headaches.
With regard to the affect on activities of daily living, the
Veteran reported that she sat or slept through most of her
headaches if they occurred at home. She lived with her
husband who felt frustrated by the headaches. She and her
husband cared for her step-children eight weeks of the year.
When they had the children, she continued to complete
childcare responsibilities despite the headaches.
During the April 2009 VA neurological examination, the
Veteran indicated that she worked full-time as a National
Guard technician in Cheyenne, Wyoming. She described an
insidious onset of headaches in her late teens. She stated
that the headache intensity had increased over time with
frequency of about one headache per week. Incapacitating
headaches which require stopping all activity and going to
bed occurred one time per month. The Veteran stated that
her headaches developed without precipitating factors. She
described awakening with sinus congestion (without pain)
most mornings. There was no pattern to her headaches and no
change in headaches with hours slept or food consumed.
Headaches were relieved by sleep. The Veteran used
occasional Excedrin Migraine for the severe headaches one to
two times per month.
The Veteran reported that the headaches were not aggravated
by light. She described decreased night vision without
headaches and indicated that she preferred to drive in
daylight hours. The headaches occur at varying times of the
day but tend to be more intense when they develop later in
the evening. Headaches were not preceded by any sensory
changes or aura. The severity of the headaches was noted to
be moderate, and a seven out of ten. The nature of usual
headaches was steady, dull, not throbbing, and unchanged by
physical act. The location of the headache was frontal,
bilateral. More severe headaches occurring more than one
time per month included dull pain in the left tapezius.
Physical examination revealed tenderness to deep palpation
over the bilateral frontal regions and left superior
trapezius. There was no tenderness over masseters, temporal
regions, pterygoids, sternocleidomast or neck splenius
muscles. There was also no tenderness over maxillary
sinuses. The diagnosis was chronic tension-type headaches,
less than one incapacitating headache per month lasting one
to ten hours. The examiner noted that there were no
significant effects on usual occupation or daily activities.
During the January 2010 Board hearing the Veteran testified
that she experienced headaches once or twice each week, one
severe and one minor one. She indicated that they were dull
headaches and if she caught them right away, she could
usually take something and rest and they would subside. If
they came on strong, however, they would not go away
quickly. She usually went to sleep to alleviate the
headaches. When she experienced headaches at work, she did
not have the time to take off so she usually closed the door
to her office and turned out the lights. However, she also
indicated that she missed work due to her headaches once
every couple of months. Medication does not seem to help
and the only thing that consistently helped was rest and
quiet.
In an October 2007 statement the Veteran's husband indicated
that the Veteran misses work at least twice a month because
of her headaches. An October 2007 statement from the
Veteran's employer also showed that the Veteran was absent
from work at least two days per month due to headaches. The
Veteran also submitted a headache log from October 2006 to
September 2007 which noted headaches occurring one to six
times per month.
Given the evidence of record, the Board finds that a
disability rating of 30 percent, but no higher, is warranted
for the Veteran's headaches for the full pendency of her
claim. As above, under DC 8100, a 30 percent rating is
warranted for characteristic prostrating attacks occurring
on an average once a month over last several months. 38
C.F.R. § 4.124a, DC 8100. During the January 2010 Board
hearing the Veteran testified that she experienced headaches
with a frequency of one to two per month. While it is
unclear whether these headaches can be considered
"prostrating attacks," the benefit of the doubt is afforded
the Veteran on this point and a rating of 30 percent for the
full pendency of the Veteran's claim is warranted.
Regarding the potential for an even higher rating, the next
higher-rating of 50 percent under DC 8100 requires evidence
of very frequent completely prostrating and prolonged
attacks productive of severe economic inadaptability. While
the Veteran has reported that she suffers from headaches
occurring more than once per month, there is no clinical
documentation that these headaches are manifested by
completely prostrating and prolonged attacks. Furthermore,
October 2007 statements from the Veteran's husband and
employer showed that the Veteran missed two days of work per
month due to her headaches and, more recently, during the
January 2010 Board hearing the Veteran testified that she
missed work only once every couple of months due to her
headaches. Such infrequent absences from work are not
indicative of severe economic inadaptability and are already
contemplated in the assigned evaluation of 30 percent.
The Board also finds that no higher evaluation can be
assigned pursuant to any other potentially applicable
diagnostic code. Because there are specific diagnostic
codes to evaluate headaches, consideration of other
diagnostic codes for evaluating the disability is not
appropriate. See 38 C.F.R. § 4.20. Accordingly, the Board
finds that a 30 percent rating is the appropriate evaluation
in this case for the entire period on appeal and that the
degree of impairment resulting from the service-connected
headaches in this case does not more nearly approximate the
next higher rating.
Extraschedular Consideration
As to whether the record raises the matter of referral for
an extraschedular rating under 38 C.F.R. § 3.321(b)(1), the
Board finds that the rating criteria considered in this case
reasonably describe the Veteran's disability level and
symptomatology. The Veteran's disability picture is
contemplated by the rating schedule, the assigned schedular
evaluations for the service-connected PTSD and headache
disorders are adequate and referral is not required. Thun
v. Peake, 22 Vet. App. 111 (2008).
Notice and Assistance
Upon receipt of a complete or substantially complete
application for benefits and prior to an initial unfavorable
decision on a claim by an agency of original jurisdiction,
VA is required to notify the appellant of the information
and evidence not of record that is necessary to substantiate
the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159;
Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio
v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006). The notice should also
address the rating criteria or effective date provisions
that are pertinent to the appellant's claim. Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
For an increased-compensation claim, section 5103(a)
requires, at a minimum, that the Secretary (1) notify the
claimant that to substantiate a claim, the claimant must
provide, or ask the Secretary to obtain, medical or lay
evidence demonstrating a worsening or increase in severity
of the disability and the effect that worsening has on the
claimant's employment; (2) provide examples of the types of
medical and lay evidence that may be obtained or requested;
(3) and further notify the claimant that "should an increase
in disability be found, a disability rating will be
determined by applying relevant [DC's]," and that the range
of disability applied may be between 0% and 100% "based on
the nature of the symptoms of the condition for which
disability compensation is being sought, their severity and
duration, and their impact upon employment." Vazquez-Flores
v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds
sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270, (Fed.
Cir. 2009).
In cases where service connection has been granted and an
initial disability rating and effective date have been
assigned, the typical service connection claim has been more
than substantiated, it has been proven, thereby rendering 38
U.S.C.A. § 5103(a) notice no longer required because the
purpose that the notice is intended to serve has been
fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006);
Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant
bears the burden of demonstrating any prejudice from
defective notice with respect to the downstream elements.
Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has
not been met in this case.
Nevertheless, the record reflects that the appellant was
provided a meaningful opportunity to participate effectively
in the processing of her claim such that the notice error
did not affect the essential fairness of the adjudication
now on appeal. The appellant was notified that her claim
was awarded with an effective date of May 1, 2007, the day
after her separation from active service, and disability
ratings were assigned. She was provided notice on how to
appeal that decision, and she did so. She was provided a
statement of the case that advised her of the applicable law
and criteria required for a higher rating and she
demonstrated her actual knowledge of what was required to
substantiate a higher rating in her argument included on her
Substantive Appeal. Although she was not provided pre-
adjudicatory notice that she would be assigned an effective
date in accordance with the facts found as required by
Dingess, she was assigned the day after her discharge from
military service as an effective date, the earliest
permitted by law. 38 U.S.C.A. § 5110(a).
Moreover, complete notice was sent in October 2008
correspondence and the claim was readjudicated in a November
2008 statement of the case and a May 2009 supplemental
statement of the case. Mayfield, 444 F.3d at 1333.
Also, the record shows that the appellant was represented by
a Veteran's Service Organization and its counsel throughout
the adjudication of the claims. Overton v. Nicholson, 20
Vet. App. 427 (2006).
Thus, based on the record as a whole, the Board finds that a
reasonable person would have understood from the information
that VA provided to the appellant what was necessary to
substantiate his claim, and as such, that she had a
meaningful opportunity to participate in the adjudication of
her claim such that the essential fairness of the
adjudication was not affected. Vazquez-Flores, 22 Vet. App.
at 49.
VA has obtained service treatment records, assisted the
appellant in obtaining evidence, afforded the appellant
physical examinations, obtained medical opinions as to the
etiology and severity of disabilities, and afforded the
appellant the opportunity to give testimony before the
Board. All known and available records relevant to the
issues on appeal have been obtained and associated with the
appellant's claims file; and the appellant has not contended
otherwise.
VA has substantially complied with the notice and assistance
requirements and the appellant is not prejudiced by a
decision on the claim at this time.
ORDER
An initial disability rating of 30 percent for PTSD is
granted, subject to governing criteria applicable to the
payment of monetary benefits.
An initial disability rating of 30 percent, but no higher,
for chronic tension headaches is granted, subject to
governing criteria applicable to the payment of monetary
benefits.
____________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs